House, Senate move abortion-related bills; measures could become law as soon as Saturday

Kentucky Republicans passed two major anti-abortion bills out of legislative committees Wednesday and through the House and Senate Thursday in hopes of enacting them into law by Saturday.

The bills passed in their respective chambers on Thursday, keeping them on track for weekend passage.

House Speaker Jeff Hoover said it is likely the General Assembly will hold an unusual weekend session to get the bills to Gov. Matt Bevin, who favors them.

One bill would ban abortion after 20 weeks of pregnancy. The other would require doctors to offer women seeking an abortion an ultrasound image of their fetus. Both bills have emergency clauses, which means they would become effective as soon as Bevin signs them.

Similar bills have been introduced in years past, but with Republicans in formal control of the House, Senate and the governorship for the first time in Kentucky history, they are on a fast track for passage. In years past, abortion bills have passed out of the Senate, but died in the Democratic-controlled House.

20-week abortion bill

Senate Bill 5, sponsored by Sen. Brandon Smith, R-Hazard, would not allow women in Kentucky to get an abortion if they are more than 20 weeks pregnant. The bill passed 11-3 out of the Veterans, Military Affairs, and Public Protection committee and now heads to the full Senate.

Richard Nelson and Sen. Brandon Smith (KHN Photo)

Tamarri Wieder, director of external affairs for Planned Parenthood Advocates of Indiana and Kentucky, told the committee that nearly 99 percent of abortions occur before 21 weeks, and the ones that are done later are often because of “complex circumstances.”

The bill is based on the premise that 20 week old fetuses can feel pain, though published research generally says this is not true. FactCheck.org, a nonpartisan service of The Annenberg Center at the University of Pennsylvania, published a detailed article on the issue and noted a JAMA article that says, “Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester,” which starts at 26 weeks.

The Kentucky Senate and House of Representatives will convene Saturday under a change in the 2017 legislative calendar approved by legislative leaders.

After working Saturday, lawmakers will return to their home districts and are scheduled to come back to Frankfort for the second part of the 2017 session on Feb. 7.

The second part of the session is still scheduled for final adjournment, as originally planned, on March 30. However, under the recent change to the session schedule, March 9 has been added to the days on which lawmakers will not be gaveled into session.

“Twenty-week bans are part of an agenda to ban abortion outright,” Wieder said. “There is no evidence, let me repeat, no evidence in the established scientific medical community that a pre-viable fetus feels pain. Senate Bill 5 is misguided.”

Richard Nelson, executive director of the conservative Commonwealth Policy Center, spoke in favor of the bill and disagreed with the research that says 20-week-old fetuses cannot feel pain, saying that medical experts say otherwise.

The committee also heard emotional testimony from Heather Hyden and James Earley of Lexington who are 14 weeks pregnant with a much-wanted baby that has a medical condition that could either resolve itself, or cause it to die. They said they won’t know the outcome until after the 20th week.

“We are concerned that limiting the timeline could cause more terminations, because families are not able to access the appropriate test and doctors visits necessary,” Hyden said.

The bill’s constitutionality is open to question, so the measure establishes for itself a legal defense fund that could receive private contributions to a trust fund overseen by the state.

According to Vox, 20-week abortion bans have been enacted in 18 states, but three of them have been blocked in court because they unconstitutionally limited women’s abortion rights:Arizona, Georgia and Idaho.

Smith, the bill’s sponsor, said the only exception provided for in the bill is if the mother’s life is in danger. This is a change from comments earlier this week when he told reporters there would also be exceptions for rape or incest.

Sen. Perry Clark, D-Louisville, told Smith that he thought there should be some “humane provisions” for cases of rape or incest. Smith said that the bill provided for this because those issues are usually dealt with before the 20th week of a pregnancy.

Smith later said on the Senate floor Thursday that Senate Bill 5 would “protect pain-capable children from the horror of having an abortion performed on them.”

Smith said books for expecting parents describe a 20-week-old fetus as capable of sucking its thumb, yawning, stretching, making faces and responding to pain.

SB 5 passed on a 30-6 vote. It now goes to the House of Representatives for consideration.

Sen. Reginald Thomas, D-Lexington, was among the opponents of the measure, arguing that women should be able to make decisions on their pregnancies without the limitations of SB 5.

“My fear is that by adopting this bill that we’re going to ultimately go back to what we saw in the 50s and 60s when we had back-alley butcher shops to take care of situations rather than having a safe medical procedure,” Thomas said.

Ultrasound bill

House Bill 2 would require doctors to offer women seeking an abortion an ultrasound image of their fetus at least 24 hours before the procedure takes place. An ultrasound can show movement by the fetus, and audio can capture the heartbeat.

The House Judiciary Committee sent the bill to the full House on a 14-5 vote, mostly along party lines. The only Democrat to vote yes was Rep. Kevin Sinnette of Ashland.

The bill’s sponsor, Rep. Addia Wuchner, R-Burlington, opened the meeting with a video of fetus ultrasounds set to music, pointing out what physicians look for when they do an ultrasound. Wuchner said the bill leaves up to the medical provider what kind of ultrasound must be done, depending on the gestational age of the fetus. A transvaginal ultrasound is typically done early in pregnancy and an external one is done in the later weeks.

Wuchner said the purpose of the ultrasound is to assure that a woman considering an abortion is fully informed of what she is about to do, and that an ultrasound is necessary to assure “informed consent.”

“The woman is given the option,” Wuchner said. “She does not have to view the ultrasound, nor does she have to listen to the heartbeat.”

The bill calls for a fine of up to $100,000 the first time a physician does not comply with the law, with further offenses subject to a fine of up to $250,000, Wuchner said.

Asked about cost, Wuchner said that women can go to the state’s only abortion clinic, in Louisville, to get the ultrasound, or one of the 28 crisis pregnancy centers in the state that offer ultrasounds at no charge. That brought a yell of “Biased!” from the crowd, which was vocal throughout the meeting.

After allowing committee members to ask questions, Chairman Joseph Fischer, R-Fort Thomas, immediately called for a vote, but was met with resistance from the crowd when several asked loudly if opponents would be allowed to speak. Fischer allowed them to do so.

Kate Miller, advocacy director of ACLU of Kentucky, said the civil-liberties group is concerned that the aim of this bill goes far beyond providing information about a health-care decision: “We are concerned that this bill will really work to shame and coerce women who have already made the decision to have an abortion.”

Pam Newman and Katie Martin of Louisville talked about their decisions to have abortions and spoke against the bill. Both said they were fully informed before the procedure and that an additional ultrasound was not necessary for their “informed consent” and only created another barrier to access. Both said it was the absolute right decision for them at the time they made it and they had no regrets.

Dr. Christine Cook, an obstetrics professor at the University of Louisville and a practicing obstetrician-gynecologist, said in reply to a question from Rep. Darryl Owens, D-Louisville, that she was concerned that the bill would create additional barriers for women seeking an abortion and that it might cause an increase in women using something other than a medical facility to abort their fetus, as she described was common before the U.S. Supreme Court’s 1973 Roe vs. Wade decision that established woman’s right to an abortion until a fetus is viable outside the womb, usually around 24 weeks.

Rep. Joni Jenkins, D-Shively, in explaining her no vote, said an abortion decision should be made among a “woman, their families and their physicians,” and “We all know what decreases the number of abortions in this country and in this state. . . . It’s getting people out of poverty, getting people hope, getting them access to birth control and getting them access to good education.”

A supporter of the bill, Rep. Stan Lee, R-Lexington, said ” I’m proud to cast a vote in favor of legislation that can help an unborn child . . . because sometimes the most vulnerable of our society need a voice.”

The bill passed the state House of Representatives on an 83-12 vote on Thursday.

No ultrasound would be required in cases of medical emergency where an abortion is considered a “medical necessity,” according to HB 2. Health care providers who do not comply with the requirement would face fines of $100,000 for a first offense and $250,000 for additional offenses.

Several floor amendments were proposed to the measure, including amendments to outlaw all forms of abortion in Kentucky, provide an exception to the proposed ultrasound requirement in cases of rape or incest and ban abortion after 20 weeks gestation. Each floor amendment called stalled on a procedural vote.

One freshman member who voted against HB 2 was Rep. Attica Scott, D-Louisville, who said half of her constituents are female. “I have spent years mentoring women who are older than me, younger than me and in my own age group and have found the importance of trusting women to make their own decisions,” said Scott.